# C_2007211EN.01005502.xml

| 8.9.2007 | EN | Official Journal of the European Union | C 211/55 |
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8.9.2007

EN

Official Journal of the European Union

C 211/55

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Appeal brought on 18 July 2007 by Luigi Marcuccio against the order of the Civil Service Tribunal of 11 May 2007 in Case F-2/06, Luigi Marcuccio v Commission

(Case T-278/07 P)

(2007/C 211/103)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, avvocato)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Forms of order sought by the appellant

The appellant claims that the Court should:

| — | in any event, set aside the order under appeal in its entirety; |
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in any event, set aside the order under appeal in its entirety;

| — | uphold the forms of order sought by the applicant at first instance; |
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uphold the forms of order sought by the applicant at first instance;

| — | order the Commission to reimburse all costs, fees and charges incurred by the appellant for the purposes of these proceedings; |
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order the Commission to reimburse all costs, fees and charges incurred by the appellant for the purposes of these proceedings;

| — | in the alternative, refer the case back to the Civil Service Tribunal for judgment. |
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in the alternative, refer the case back to the Civil Service Tribunal for judgment.

Pleas in law and main arguments

By the present appeal, it is sought to have set aside the order of the Civil Service Tribunal of 11 May 2007 in Case F-2/06 Marcuccio v Commission, dismissing as inadmissible the action brought by the applicant.

Marcuccio

Commission

The appellant relies on the following grounds of appeal:

| — | the Civil Service Tribunal distorted the clear sense of the facts and of the statements made by the applicant in his written pleadings at first instance. On that point, it is emphasised in particular that the physical existence of the decision at issue in the proceedings at first instance is clear without a shadow of a doubt from the text of the Commission's note of 29 July 2005, which provides for the possibility of reopening at any given moment a file that had been shelved. The reference to that possibility leaves no doubt, not only that the decision at issue had actually been taken, but also that it had actually been carried out; |
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the Civil Service Tribunal distorted the clear sense of the facts and of the statements made by the applicant in his written pleadings at first instance. On that point, it is emphasised in particular that the physical existence of the decision at issue in the proceedings at first instance is clear without a shadow of a doubt from the text of the Commission's note of 29 July 2005, which provides for the possibility of reopening at any given moment a file that had been shelved. The reference to that possibility leaves no doubt, not only that the decision at issue had actually been taken, but also that it had actually been carried out;

| — | it is an error in law for a court to make an order ruling that an action is manifestly inadmissible — a fortiori on grounds of public policy such as the absence of any act adversely affecting the interests of the applicant in the case of an action for annulment — following an attempt to reach an amicable settlement, and all the more so when no specific grounds, directly related to the facts of the case, are stated for so doing; |
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it is an error in law for a court to make an order ruling that an action is manifestly inadmissible — a fortiori on grounds of public policy such as the absence of any act adversely affecting the interests of the applicant in the case of an action for annulment — following an attempt to reach an amicable settlement, and all the more so when no specific grounds, directly related to the facts of the case, are stated for so doing;

a fortiori

| — | the appellant's rights of defence were irreparably damaged in that, not having been informed of the progress of the case, he was unable to do anything to strengthen his defence of his own reasons. On that point, it is maintained that the note by which the Civil Service Tribunal informed the appellant of the implementation of the attempt at settlement was not followed by any other communication, whether in writing or in any other form, concerning the progress of the case, far less concerning the outcome of the attempt to reach an amicable settlement. Furthermore, the Civil Service Tribunal made the order under appeal more than six months after that attempt. As if that were not enough, there is no mention in the order under appeal of the attempt to reach an amicable settlement; |
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the appellant's rights of defence were irreparably damaged in that, not having been informed of the progress of the case, he was unable to do anything to strengthen his defence of his own reasons. On that point, it is maintained that the note by which the Civil Service Tribunal informed the appellant of the implementation of the attempt at settlement was not followed by any other communication, whether in writing or in any other form, concerning the progress of the case, far less concerning the outcome of the attempt to reach an amicable settlement. Furthermore, the Civil Service Tribunal made the order under appeal more than six months after that attempt. As if that were not enough, there is no mention in the order under appeal of the attempt to reach an amicable settlement;

| — | lastly, the appellant maintains that the order under appeal is vitiated by a complete failure to state reasons, as well as by the incorrect and misconceived application of the notion of a decision adversely affecting the applicant's interests. |
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lastly, the appellant maintains that the order under appeal is vitiated by a complete failure to state reasons, as well as by the incorrect and misconceived application of the notion of a decision adversely affecting the applicant's interests.

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